Weems v. Mayfield

delivered the opinion of the court.

Weems, the complainant, seeks to enjoin the respondent, May-field, from inserting windows in the second story of the latter’s building, in the division wall between them. The wall was built by contract between the parties, equally upon the property of each of them owned in severalty. The wall, eighteen inches in thickness to the height of the first story, rested equally upon the lots of both parties. The wall of the second story rested one-half, or nine inches of it, upon the lot of Weems, and four inches of it only on the lot of Mayfield, the wall being set in five inches from the inner part of the building of Mayfield. The wall was built in 1889, and was built solid, or without open*293ings in it, and Mayfield having a chance to rent his second story to the Masonic fraternity, now desires to cut, and is proceeding to cut, windows through this division wall — -that is, through the four inches of it resting upon his own lot, and also through the nine inches resting upon the lot of Weems; and to prevent the cutting of such windows, an injunction was granted, which was dissolved upon hearing, hence this appeal. It should be added that Weems joined this wall by a building one hundred feet in length, and only one story high. Weems claims that the wall was built as a party wall. Mayfield claims that the wall was not to be a party wall, but was built as his sole property, and was to be regarded as if entirely upon his land, but stated in his evidence that there was no agreement in regard to windows in the second story. The claim of Mayfield that the wall was to be solely his, and to be only for his sole use and benefit, cannot be maintained. The unequivocal purpose of both parties to that end could not have effected such intent. In law the word land includes not only the face of the earth, but everything under it or over it. Its unvarying principle is that he who possesses land, possesses also that which is above it. 1 Tho. Co. (198). Cujus est solum, ejus est usque ad ccelum.

This subject is not affected by § 3138, annotated code, for § 2434 provides that an estate in land for a term of more than one year shall not be conveyed from one to another, unless the conveyance be declared in writing, signed and delivered. A wall built upon the dividing line of two separate proprietors, partly upon the land of each, is a party wall. The ownership of the land under a party wall remains in the several owners, subject to the easement of supporting the building upon each lot by means of the common wall; and this easement is limited to what is necessary for that purpose. A division wall is usually a solid wall, and by usage the words ‘‘ party wall ’ ’ and “ division wall ” have come to mean a solid wall. Matts v. Hawkins, 5 Taunt, 20., s. c. 1 E. C., L. R., 4; Norvelle v. Gill *294(159 Mass., 427), 38 Am. St. Rep., 441; Graves v. Smith, 87 Ala., 450, s. c. 5 L. R. A., 298.

The decree helow is reversed, the i/ryjv/nction is restored, and it is ordered that the same he made perpetual.